April 4, 1990
By Wade W. Herring, II, published on April 4, 1990, in Mercer Law Review 41, no. 34, Rev. 843.
I. WHY CONSIDER WHETHER AN AREA IS A WETLAND?
A real estate developer may acquire property for commercial, residential, agricultural, or industrial use only to discover that the United States Army Corps of Engineers (the “Corps”) or the Environmental Protection Agency (the “EPA”) can thwart the development plans if they discover “jurisdictional wetlands” on the property. (see end note 1) Section 404 (see end note 2) of the Clean Water Act (see end note 3) (the “CWA”), also known as the Federal Water Pollution Prevention Control Act of 1972, regulates the filling of various wetlands and has become increasingly important and controversial over the last few years as the Corps and EPA have stepped up enforcement actions against unsuspecting developers. Should a developer inadvertently begin work in a wetland without benefit of a permit, or should it intentionally attempt to circumvent the Act, the Corps and EPA have available both administrative and judicial remedies to stop the developer’s work on its project. (see end note 4)
To avoid a surprise confrontation with the Corps or EPA, the developer must first determine whether jurisdictional wetlands are located on the property scheduled for development or alteration. (see end note 5) If so, the developer should next ascertain whether the work it seeks to do is exempt from the CWA (see end note 6) or is authorized by a section 404(e) general permit. (see end note 7) If not, the developer must subject its project to a more detailed review process that may include public hearings (see end note 8 ) and close scrutiny by not only the Corps and EPA, but also the United States Fish and Wildlife Service, the National Marine Fisheries Service, and various state agencies. (see end note 9) Even if the Corps finally decides to issue a permit to the waiting developer, the EPA can overrule the Corps’ decision. (see end note 10)
II. WHAT DOES “WATERS OF THE UNITED STATES” MEAN?
Section 404 of the CWA applies to “navigable waters.” (see end note 11) The Corps’ authority under the CWA, however, extends well beyond the historical meaning of “navigable waters.” Under the CWA, “[t]he term ‘navigable waters’ means the waters of the United States, including the territorial seas.” (see end note 12) “It is the intent of the Clean Water Act to cover, as much as possible, all waters of the United States instead of just some.” (see end note 13) “[T]he Act has been interpreted to extend federal jurisdiction over the nation’s waters to the maximum extent permissible under the Commerce Clause of the Constitution.” (see end note 14)
Given that the Corps’ authority covers all waters of the United States, at least to the extent permitted by the commerce clause, the issue becomes one of determining at what point water ends and land begins. The Supreme Court addressed this issue in the landmark case of United States v. Riverside Bayview Homes, Inc. (see end note 15) “In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this [determination] is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—-in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious.” (see end note 16)
In Riverside Bayview the Court upheld a broad definition of “waters” to include wetlands adjacent to other water bodies. (see end note 17)
Determining whether an area includes wetlands requires an evaluation of the property’s soils, hydrology, and vegetation. “The term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wet lands generally include swamps, marshes, bogs, and similar areas.” (see end note 18)
“In order to determine if wetlands exist on a specific parcel of property, the EPA and the Corps routinely are required to take soil and vegetation samples, and to conduct various scientific tests of those samples.” (see end note 19) If the regulatory agencies cannot gain timely access to property for on-site inspections prior to alteration of the property, the agencies can base the wetlands determination upon aerial photographs taken while alteration or development is in progress and upon soil analysis made after development of the property. (see end note 20)
The definition of wetlands includes property that has the requisite soil, hydrology, and vegetation conditions because of artificial or man-made developments. (see end note 21) “[F]ederal jurisdiction is determined by whether the site is presently wetlands and not by how it came to be wetlands.” (see end note 22) “In short, the statutory and administrative definitions of ‘waters’ and ‘wetlands’ are broad enough to encompass so-called ‘man-made’ wetlands and their inclusion is consistent with underlying legislative intent.” (see end note 23)
III. ISOLATED WATERS AND WETLANDS
Reaching to the limits of the commerce clause, section 404 and the Corps’ authority extend to intrastate waters not part of surface tributary systems connected to traditionally navigable waters. The term “waters of the United States” includes “intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandfiats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce . . . ” (see end note 24) Waters affecting interstate commerce include those that people and businesses use for recreational, fishing, or industrial purposes. (see end note 25)
The courts have been willing to uphold the Corps’ jurisdiction based upon only limited connections to interstate commerce. In Quivira Mining Co. v. United States EPA, (see end note 26) the Tenth Circuit upheld jurisdiction over a normally dry arroyo or gully in New Mexico that was only occasionally connected to navigable waters between periods of heavy rainfall. (see end note 27) The court, and ultimately the parties, agreed that in the case of National Wildlife Federation v. Laubscher (see end note 28) visits to a pond in south Texas by migratory birds sufficed to permit Corps’ authority over the pond. (see end note 29) Furthermore, a totality of circumstances established jurisdiction over a 150 acre lake in Utah v. Marsh: (see end note 30) recreational use by out-of-state travelers; irrigation of crops sold in interstate commerce; commercial fishing of fish sold primarily out of state; and use of the lake by several species of migratory birds. (see end note 31) Notwithstanding other possible connections with interstate commerce, the potential impact of water pollution alone, if the property is not subject to regulation, may be enough for the Corps to exert jurisdiction. (see end note 32)
IV. WHAT ACTIVITIES ARE SUBJECT TO SECTION 404 OF THE CWA?
In addition to its liberal grant of geographic jurisdiction, section 404 gives the Corps broad authority over a wide range of activities affecting wetlands. As a general rule, section 404 requires a property owner to obtain a permit from the Corps before discharging dredged or fill material into waters of the United States. (see end note 33) Activities in wetlands that may require permits include: (1) placement of fill material; (2) ditching activities when the excavated material is side cast; (3) levee and dike construction; (4) land clearing that involves relocation of soil material; (5) land leveling; (6) road construction; and (7) dam construction. (see end note 34) The Corps district offices are available for preapplication consultation for property owners planning activity on possible wetlands. (see end note 35)
V. EXEMPTED ACTIVITIES
Section 404(f)(1) exempts the discharge of dredged or fill materials from certain activities from the permit requirements of section 404. (see end note 36) These exempt activities include:
(1) normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting;
(2) maintenance and emergency reconstruction of . . . dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures;
(3) construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;
(4) construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters;
(5) construction or maintenance of farm roads or forest roads, or temporary mining roads. (see end note 37)
An exemption, however, is not available to the developer if the activity would violate a toxic effluent standard. (see end note 38) Additionally, under the “recapture” provisions of section 404(f)(2), an activity is not exempt if it would constitute a new use impairing the flow, circulation, or reach of the waters of the United States. (see end note 39)
An examination of federal regulations and case law reveals that the Corps, EPA, and courts have narrowly construed the permit exemptions that section 404(f)(1) allows. The burden of proof is on the would-be developer to establish that an activity fits within an exemption. (see end note 40) The courts have held consistently that the provision’s legislative history, intent and purpose require a narrow construction of the 404(f)(1) exemptions. (see end note 41) For example, under the Corps regulations the “normal farming” exemption applies only to those activities that are “part of an established (i.e., ongoing) farming” operation. (see end note 42) When farmers attempting to expand their operations have fought the Corps in court, the Corps has won. (see end note 43) Activities are not part of an “on-going” farming operation if they bring a new area into agricultural use or if they require hydrological modification of an area, even if the area has been farmed in the past. (see end note 44)
Moreover, what section 404(f)(1) gives, section 404(f)(2) takes away. “Read together, the two parts of section 404(f) provide a narrow exemption for agricultural and silvicultural activities that have little or no adverse effect on the nation’s waters.” (see end note 45) The “recapture” by section 404(f)(2) of activities that impair the flow, circulation, or reach of the waters of the United States is especially significant because the term “waters of the United States” includes wetlands. Accordingly, “minor drainage” does not include converting a wetland to a nonwetland. (see end note 46) Similarly, “plowing” does not include “the redistribution of surface materials by blading, grading, or other means to fill in wetland areas . . . . (see end note 47)
VI. ACTIVITIES ALLOWED PURSUANT TO GENERAL OR NATIONWIDE PERMITS
Section 404(e) authorizes general permits on a “state, regional, or nationwide basis for any category of activities including discharges of dredged or fill material if. . . the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” (see end note 48) With this authorization, the Corps has issued twenty-six nationwide permits. (see end note 49) “These nationwide permits authorize certain classes of activity within the scope of the Corps’ jurisdiction to be carried out without an individual project permit.” (see end note 50) A nationwide permit “is automatic in that if one qualifies, no application is needed before beginning the discharge activity.” (see end note 51) The purpose of the nationwide permits is to allow certain activities to proceed with little delay or paperwork. The developer who proceeds under the assumption that he is covered by an exemption or by a nationwide permit bears the risk of rectifying his mistake if he assumes incorrectly. (see end note 52)
Under the nationwide permits, outdoorsmen and beachcombers are exempt because the regulations authorize the construction of duck blinds and digging for clams and oysters. (see end note 53) Other commonly used nationwide permits include Permit 12, which allows the “[d]ischarge of material for backfill or bedding for utility lines, including outfall and intake structures, provided there is no change in preconstruction bottom contours” and provided “excess material removed to an upland disposal area.” (see end note 54) With restrictions, Permit 13 allows “bank stabilization activities.” (see end note 55) Permit 14 authorizes “minor road crossing fills,” defined as crossings that involve “the discharge of less than 200 cubic yards of fill material below the plane of ordinary high water.” (see end note 56)
Permit 26 is often referred to as the “headwaters” or “isolated waters” nationwide permit. (see end note 57) Permit 26 authorizes discharges of fill material into wetlands smaller than ten acres located above the headwaters of nontidal waters or into wetlands “not part of a surface tributary system . . . (i.e., isolated waters).” (see end note 58) “The term ‘headwaters’ means the point on a non-tidal stream above which the average annual flow is less than five cubic feet per second.” (see end note 59) Permit 26 exempts not merely an activity from individual permits, but also an entire classification of wetlands. (see end note 60) Developers claiming their activities were allowed under Permit 26, however, have not fared well in the courts. (see end note 61)
Even for the developer who does fit within the requirements of Permit 26 and other nationwide permits, if the planned discharges are likely to “cause the loss or substantial adverse modification of ten acres or more” of wetlands, the developer must first notify the local Corps district engineer. (see end note 62) The developer cannot make discharges until (1) the district engineer has given notification that work may proceed under the nationwide permit, (see end note 63) or (2) twenty days have passed since the district engineer received notice of the planned discharges and the developer has received no notice from the district or division engineer. (see end note 64) The purpose of the notification procedure is to permit the Corps and other agencies to review the proposed activities and determine if and under what circumstances the activities will be allowed. (see end note 65)
The district or division engineer may impose special conditions even if the district engineer authorizes work to proceed under the nationwide permit. (see end note 66) The regulations require an individual permit if the activity does not comply with the terms or conditions of a nationwide permit. (see end note 67) Even if the planned activity fits within the requirements of a nationwide permit, the regulations require an individual permit if the work would “have more than minimal adverse environmental effects on the aquatic environment when viewed either cumulatively or separately.” (see end note 68)
For all nationwide permits, the Corps regulations impose certain “conditions” (see end note 69) and “management practices.” (see end note 70) The purpose of the conditions and management practices is to minimize the adverse effects of national permit discharges on the aquatic environment. (see end note 71) For example, as a management practice, discharges in wetlands are to be avoided. (see end note 72) A developer’s failure to follow the enumerated conditions will invalidate his ability to proceed under a nationwide permit. (see end note 73) In the event a developer fails to comply with the listed management practices, the Corps has discretionary authority to regulate the developer’s activity on an individual or regional basis. (see end note 74) Moreover, compliance with management practices “to the maximum extent practicable” is a “condition” for proceeding under a national permit. (see end note 75)
VII. PROCEDURES FOR AN APPLICATION FOR AN INDIVIDUAL PERMIT
If a developer is planning activities in wetlands that are not exempt or do not qualify for a nationwide permit, then it must submit an application for an individual permit. An individual permit is the Corps’ authorization to proceed “following a case-by-case evaluation of a specific project involving the proposed discharge(s)” in accordance with federal regulations, including “a determination that the proposed discharge is in the public interest.” (see end note 76) The developer must use a standard application form that is obtainable from the district office having jurisdiction over the wetlands to be affected by the proposed project or activity. (see end note 77) The Corps regulations specify the required contents of the application and require “a complete description of the proposed activity including necessary drawings, sketches, or plans sufficient for public notice.” (see end note 78) If the activity is to involve the discharge of dredged or fill material in wetlands, “the application must include the source of the material; the purpose of the discharge, a description of the type, composition and quantity of the material; the method of transportation and disposal of the material; and the location of the disposal site.” (see end note 79) In addition to the information the application requires, district or division engineers may request additional information on a case-by-case basis as deemed “essential to make a public interest determination.” (see end note 80)
VIII. PUBLIC NOTICE AND HEARING
Within fifteen days of receiving an application, the district engineer is to issue a public notice if he determines that the application is complete. (see end note 81) A permit cannot be issued without a “notice and opportunity for public hearing.” (see end note 82) “The public notice is the primary method of advising all interested parties of the proposed activity for which a permit is sought and of soliciting comments and information necessary to evaluate the probable impact on the public interest.” (see end note 83) The notice must be detailed enough to “present for public scrutiny the rationale and pivotal data” underlying the proposed action. (see end note 84) The Corps regulations specify with detail the required contents of the public notices and how the Corps should distribute them. (see end note 85) The comment period is to be from fifteen to thirty days. (see end note 86) In practice, however, the Corps frequently extends the comment period as well as other time guidelines under its regulations. (see end note 87) The Corps presumes that all interested parties will respond to public notices and the Corps interprets a lack of response to mean that no one objects to the proposed project. (see end note 88)
The Corps may hold a public hearing if “needed for making a decision” on the permit application. (see end note 89) If the Corps has not specified that it will hold a hearing, then a member of the public can request one. (see end note 90) The request must state “with particularity the reasons for holding a public hearing.” (see end note 91) The district engineer must grant the request unless he “determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing.” (see end note 92)
The purpose of a public hearing is to acquire information or evidence that the Corps will use in evaluating the permit application and to allow “the public an opportunity to present their views, opinions, and information” on the application. (see end note 93) The hearing is intended to protect the public’s interests, rather than those of the applicant. (see end note 94) Neither Corps regulations nor the Constitution require a formal, trial-type hearing. (see end note 95) For example, Corps regulations prohibit cross-examination of witnesses. (see end note 96) All that the regulations and constitutional due process require is an informal, speechmaking, type hearing. (see end note 97)
IX. PUBLIC INTEREST REVIEW
In its evaluation of a section 404 permit application, the Corps must conduct a “public interest review.” (see end note 98) The public interest review constitutes a general balancing of a proposed project’s reasonably expected benefits against its reasonably foreseeable detriments. (see end note 99) The Corps is required to consider all relevant factors. (see end note 100) These factors include: “conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and in general, the needs and welfare of the people.” (see end note 101)
Subject to special rules for wetlands and any other applicable restrictions, the Corps should grant a permit “unless the district engineer determines that it would be contrary to the public interest.” (see end note 102)
Corps regulations contain special criteria for evaluating the effect a proposed project will have on wetlands. (see end note 103) These criteria begin with the instruction that the unnecessary alteration or destruction of wetlands “should be discouraged as contrary to the public interest.” (see end note 104) The regulations identify eight factual determinations of how wetlands are “considered to perform functions important to the public interest.” (see end note 105) Additionally, the wetlands criteria recognize that although a particular project may effect only a minor change, “the cumulative effect of numerous piecemeal changes can result in a major impairment of wetland resources.” (see end note 106) Accordingly, district engineers are required to evaluate applications for projects affecting wetlands “with the recognition that it may be part of a complete and interrelated wetland area.” (see end note 107) Thus, if a wetland is found to be “important,” the district engineer, in light of the cumulative effect of projects on wetlands, will not grant a permit unless “the benefits of the proposed alteration outweigh the damage to the wetlands resource.” (see end note 108)
X. JUDICIAL REVIEW OF CORPS’ PUBLIC INTEREST REVIEW
Courts and commentators have criticized the seemingly standardless criteria of the Corps’ public interest review.’ (see end note 109) Even so, the courts’ articulated standard of review of Corps decisions is deferential. (see end note 110) Like the criticized public interest review criteria, judicial definitions and formulations of the standard of review are subject to manipulation dependent upon the desired result. (see end note 111) When the courts wish to find a way to reverse Corps decisions, they are able to do so.
Courts will not re-evaluate the Corps’ value judgments and findings regarding the benefits of wetlands. (see end note 112) “Congress and the Corps have wisely decided that each litigant should not be able to insist upon a de novo determination of the value of wetlands to the American public.” (see end note 113) Consideration of a Corps decision begins with the presumption that the unnecessary alteration or destruction of wetlands is contrary to the public interest. (see end note 114) Moreover, the Corps should not make decisions on a piecemeal approach, but should base the decisions upon the cumulative effect proposed projects will have on wetlands. (see end note 115) Section 404 may impose limits on a would-be developer’s plans for its property, but “the Clean Water Act and the applicable regulations do not contemplate that wetlands will be destroyed simply because it is more convenient than not to do so.” (see end note 116)
Although the regulations presume that the destruction of wetlands is contrary to the public interest, the Corps will issue a permit if it determines that the benefits of a project outweigh the damage to the wetlands resource. (see end note 117) For example, the Corps may issue a permit if it determines that the wetlands have very little environmental value. (see end note 118) Even a “marginal benefit” that outweighs any harm to wetlands is a sufficient basis for a permit. (see end note 119) If the administrative record supports the Corps’ findings and the developer has followed all applicable regulations, a court will be reluctant to reconsider the propriety of the project on the basis of its “marginal benefits.” (see end note 120)
The courts have indicated that when making its public interest review, the Corps should limit its consideration of “relevant factors” to those proximately related to changes in the physical environment.’ (see end note 121) “The Corps may not . . . properly consider and give significant weight to economic effects unrelated to the impact which a proposed project will have on the environment.” (see end note 122) Thus, the Corps could not properly consider that a proposed project would create an estimated three million dollars in public jobs. (see end note 123) Similarly, the Corps could not deny a permit because the location of a project in one community would impose an economic harm on a neighboring community. (see end note 124) “[T]he proper scope of the Corps’ public interest inquiry is limited to the effects of impacts on the physical environment, such as the commercial or recreational value of areas directly affected by a change in the environment.” (see end note 125)
XI. CORPS CONSIDERATION OF OTHER AGENCY OPINIONS
When evaluating a permit application, the Corps must give “full consideration and appropriate weight” to other federal, state, and local agencies. (see end note 126) Federal regulations specifically direct the Corps to consult with the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the state agency responsible for fish and wildlife “with a view to the conservation of wildlife resources.” (see end note 127) “[T]he Corps is not bound to agree with the conclusions reached by these resource agencies, but simply required to listen to and consider their views in the decision-making process.” (see end note 128) If a proposed activity in coastal waters may modify the coastline, however, the Corps must coordinate evaluation of the permit application with the attorney general and the Solicitor of the Department of the Interior. (see end note 129) At least in theory, the processing of an application for a section 404 permit “normally will proceed concurrently with the processing of other required federal, state, and/or local authorizations or certifications.” (see end note 130)
XII. SECTION 404(B) GUIDELINES
The public interest review is not the only evaluation process for a section 404 permit application. The Corps must also evaluate the permit pursuant to section 404(b)(1) guidelines, which are promulgated by the EPA in conjunction with the Corps. (see end note 131) Current Corps regulations make application of the 404(b)(1) guidelines mandatory in the evaluation of a permit application. (see end note 132) Corps regulations also provide that a permit will be denied if the proposed discharge would not comply with 404(b)(1) guidelines. (see end note 133)
The guidelines are set out in the regulations of the EPA at 40 C.F.R. Section 230. As a fundamental precept, the guidelines state that the discharge of dredged or fill materials should not be permitted “unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact” on the environment. (see end note 134) Additionally, the guidelines specify that filling operations in wetlands are “considered to be among the most severe environmental impacts.” (see end note 135)
A proposed discharge activity does not comply with the guidelines, and the Corps should not permit the activity “if there is a practicable alternative to the proposed discharge which would have less adverse impact” on the environment. (see end note 136) “Practicable alternatives” include: (1) “[a]ctivities which do not involve a discharge of dredged or fill material into the waters of the United States,” or (2) “[d]ischarge of dredged or fill material at other locations in waters of the United States.” (see end note 137) “An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” (see end note 138) The Corps can consider alternative project sites, even though not owned by the permit applicant, as “practicable alternatives” if the applicant can “reasonably” obtain the property. (see end note 139) If the applicant plans the proposed activity for a “special aquatic site,” which by regulatory definitions include wetlands or mud flats, then (see end note 140) “practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise.” (see end note 141)
In addition to the “practicable alternatives” limitation, the section 404(b)(1) guidelines disallow a permit for the discharge of dredged or fill material that “will cause or contribute to significant degradation of the waters of the United States.” (see end note 142) Whether an activity will cause or contribute to a “significant degradation” is a factual determination based upon detailed chemical, biological, and physical evaluations and testing procedures for judging the impact on the aquatic ecosystem. (see end note 143) Among the adverse effects the Corps should consider when making this determination are the effects of the discharge of pollutants on (1) human health or welfare, (2) aquatic and other wildlife, (3) “aquatic ecosystem diversity, productivity, and stability,” and (4) “recreational, aesthetic, and economic values.” (see end note 144)
Under the guideline requirements, the Corps cannot issue a permit “unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.” (see end note 145) The regulations provide specific examples of ways to minimize adverse effects of discharge materials. These examples include actions concerning the location of the discharge, the material to be discharged, control of the material after discharge, the method of dispersion, and the use of discharge technology. (see end note 146)
The EPA and Corps have differed on the application and interpretation of the section 404(b)(1) guidelines. Current EPA regulations provide that both the EPA and Corps are to interpret and implement the guidelines. (see end note 147) Only the EPA, however, is authorized to modify “the basic application, meaning, or intent” of the guidelines through rulemaking authority under the Administrative Procedure Act (the “Act”). (see end note 148)
XIII. COURTS’ CONSIDERATION OF SECTION 404(B)(1) GUIDELINES
When reviewing whether a 404 permit should be issued, the Corps and the courts combine the requirements of the Corps’ public interest review regulations and the requirements of the 404(b)(1) guidelines. (see end note 149) This blurring of the two different criteria results in some confusion regarding what is required of each. The courts, however, have made it clear that developers must observe both the Corps’ and EPA’s rules. (see end note 150)
As with the public interest review, the 404(b)(1) guidelines require the Corps to weigh environmental concerns against the objectives and related costs of the permit applicant. Under the guidelines, “not only is it permissible for the Corps to consider the applicant’s objective; the Corps has a duty to take into account the objectives of the applicant’s project.” (see end note 151) When considering the applicant’s objectives, the Corps can properly consider the applicant’s costs. (see end note 152)
The Corps cannot use the goals, costs, and convenience of the permit applicant to outweigh guideline requirements. In Sierra Club v. United States Army Corps of Engineers, (see end note 153) the Court of Appeals for the Second Circuit used the 404(b)(1) guidelines and the CWA as the basis for “a more intrusive power of review” of a Corps’ permit decision than otherwise allowed by the APA. “Instead of simply insisting procedurally that the agency weigh environmental concerns, the Clean Water Act specifically prohibits an agency from sanctioning a project that it finds will have a significant adverse impact on the marine environment. Therefore, when an agency approves a project that the record before a reviewing court reveals will have a significant adverse impact on marine wildlife, the agency determination must be reversed.” (see end note 154)
The court states that the Corps must deny the permit if the applicant cannot demonstrate that its project will not have an “unacceptable adverse impact” on the environment. (see end note 155)
XIV. EPA’s 404(c) Veto Power
Section 404(c) of the CWA authorizes the EPA to veto a Corps’ permit if it determines, “after notice and opportunity fro public hearings,” that the discharge of dredged or fill material into the site in question “will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” (see end note 156) The veto power gives the EPA a powerful, though infrequently used, tool to supervise the permit process. The Second Circuit, the only circuit court to consider the EPA’s 404(c) power, upheld the EPA’s exercise of its veto power in Bersani v. Robichaud. (see end note 157)
The appellate court’s decision is the latest in a trilogy of court opinions concerning the efforts of developers attempting to build a shopping mall on the site of wetlands known as Sweedens Swamp in South Attleboro, Massachusetts. (see end note 158) Ironically, in challenging the EPA’s authority under 404(c), the developers helped provide important judicial affirmation of the EPA’s veto power. The Sweedens Swamp litigation helped establish that the EPA has broad discretion in determining when to initiate 404(c) proceedings. (see end note 159) The EPA can consider other information in addition to that provided by the Corps. (see end note 160) When making its 404(c) determination, the EPA is not bound by the Corps’ findings. (see end note 161) Obviously, the EPA must be able to disagree with the Corps’ conclusions if it is to have veto power.
When making its 404(c) decision, the EPA can use its 404(b)(1) guidelines to determine whether a proposed activity will have “an unacceptable adverse effect.” (see end note 162) Thus, under 404(c) the EPA can consider whether the developer has any “practicable alternatives” as defined by the 404(b)(1) guidelines. (see end note 163) Specifically, “the avoidability of a loss may be considered in conjunction with its magnitude in determining whether it is ‘unacceptable’ within the meaning of Section 404(c). (see end note 164) Of more importance and greater concern to developers, the Sweedens Swamp holdings permit the EPA to consider what “alternatives” the developer had “available,” not at the time the developer applied for its permit, but at the time the developer entered the market for its project. (see end note 165)
XV. ENFORCEMENT, PENALTIES, AND REMEDIES
The developer who ignores the requirements of section 404 and alters wetlands without a permit does so at its peril. The EPA and Corps have available administrative, civil, and criminal remedies to enforce the requirements of section 404.1 (see end note 166) In a Memorandum of Agreement signed by the EPA and the Corps on January 19, 1989, the two agencies agreed to strengthen the section 404 enforcement program. The renewed interest in enforcement is the result, at least in part, of pressure created by a July 28, 1988, report of the General Accounting Office criticizing the Corps’ section 404 efforts, as well as a critical report issued by the National Wetlands Policy Forum, a group convened by the Conservation Foundation at the request of the EPA. Responding to public and political pressures and concerns, the EPA and Corps have shown that they will use their enforcement tools to prevent the illegal destruction of wetlands.
Once unauthorized activity is detected, the EPA or Corps can issue a cease and desist order. (see end note 167) The agencies can also order the developer discharging materials without a permit, or in violation of a permit, to take “initial corrective measures.” (see end note 168) When the developer has acted in violation of an issued permit, the EPA or Corps can assess administrative penalties of up to $10,000 per day for each day the violation continues, but not to exceed a total of $125,000. (see end note 169) So long as any pending enforcement action has been resolved and a permit has not been previously denied, the developer can apply for an “after-the-fact permit” to enable it to continue its project within the requirements of the law. (see end note 170)
If the EPA or Corps cannot resolve a dispute with their own resources, or if they determine that legal action is appropriate, then they can take the violator to court. Both civil and criminal sanctions are available. (see end note 171) Civil penalties for violating permit restrictions or orders of the EPA or Corps can range up to $25,000 per day. (see end note 172) “In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and any such other matters as justice may require.” (see end note 173)
When the government seeks a civil fine, the alleged violator is entitled to a jury trial on the issue of liability because fines under the CWA are punitive. (see end note 174) Once the violator is found liable, however, the trial judge alone can fix the amount of the fine. (see end note 175)
The EPA or Corps can also seek injunctive relief, including restoration of the damaged wetlands. (see end note 176) Before the court can order restoration, however, the violator “must be afforded an opportunity to present its objections to the feasibility and environmental advisability of the restoration order to be undertaken.” (see end note 177) A restoration order requires “a factual record establishing that the court’s choice of the specific restoration ordered was based upon a comprehensive evaluation of the environmental factors involved and the practicalities of the situation.” (see end note 178) The full effects of any environmental disturbance are difficult to measure. Attempts to reverse such effects and restore the environment to its natural state carry with them no guarantee of success. Hence, any restoration plan must be carefully designed to confer maximum environmental benefits. At the same time, courts must temper the law with a touch of equity. In the formation of that remedy, the courts must consider the degree and kind of wrong and the practicality of the remedy. (see end note 179) If on-site restoration is not feasible, then a court can order the violator to provide an alternative area similar to the one destroyed. (see end note 180) To provide extra incentive for a violator to undertake the labor and expense of required restoration, courts can impose a monetary civil penalty but hold the fine in abeyance pending implementation of restoration. (see end note 181)
The CWA authorizes criminal sanctions that have been used. (see end note 182) Conviction for making false statements on a permit application can result in a fine of up to $10,000 and two years imprisonment. (see end note 183) The government can punish persons who negligently violate permit conditions with a fine of $2,500 to $25,000 per day of violation and by imprisonment of up to one year. (see end note 184) Knowing violators of a permit face fines of $5,000 to $50,000 per day and imprisonment for up to three years. (see end note 185)
For the developer, an attempt to comply with section 404 wetlands regulations can mean delay, expense, and frustration. The developer who ignores the requirements of section 404, however, does so at the risk of incurring severe sanctions, including imprisonment. Although enforcement of section 404 has been erratic, the EPA and the Corps have resolved to pursue violators of section 404 more vigilantly. The prudent developer planning a project for property including wetlands will contact the Corps early on in the development of its project and keep the lines of communication open.
1. See 33 C.F.R. § 328 (1989) (defining ‘Waters of the United States”). See also 40 C.F.R. § 230.3(s) (1989).
2. Pub. L. No. 92-500, § 404, 86 Stat. 884 (1972) (codified as amended at 33 U.S.C. §
1344 (1982)). Hereinafter, all cites to the Clean Water Act (the “CWA”) will be to U.S.C.
3. 33 U.S.C. §§ 1251-1376 (1982 & Supp. V 1987).
4. See, e.g., 33 U.S.C. §§ 1319, 1344(s) (1982).
5. 33 C.F.R. § 328.3(b) (1989); 40 C.F.R. § 230.3(c) (1989).
6. 33 U.S.C. § 1344(f) (1982).
7. 33 C.F.R. § 330.5 (1989); 33 U.S.C. § 1344(e)(1) (1982).
8. 33 C.F.R. §§ 325.2(a)(5), 327 (1989).
9. Id. § 320.4(c).
10. 33 U.S.C. § 1344(c) (1982).
11. Id. § 1344(a).
12. Id. § 1362(7).
13. Quivira Mining Co. v. EPA, 765 F.2d 126, 129 (10th Cir. 1985), cert. denied, 474 U.S. 1055 (1986) (quoting Deltona Corp. v. United States, 657 F.2d 1184, 1186, 228 Ct. Cl. 476 (1981)).
14. P.F.Z. Properties, Inc., v. Train, 393 F. Supp. 1370, 1381 (D.D.C. 1975) (citing Natural Resources Defense Council v. Gallaway, Gribble & Train, 392 F. Supp. 685 (D.D.C.
15. 474 U.S. 121 (1985).
16. Id. at 132.
17. Id. at 139.
18. 33 C.F.R. § 328.3(b) (1989); 40 C.F.R. § 230.3(t) (1989).
19. Matter of Alameda County Assessor’s Parcel Nos. 537-801-2-4 & 537-850-9, 672 F. Supp. 1278, 1283 (ND. Cal. 1987). See also National Wildlife Fed’n v. Hanson, 623 F. Supp. 1539, 1548 (E.D.N.C. 1985) (stating that “[t]he Corps’ determination must be based on sound scientific analysis of the vegetation, hydrology and soils employed after actual investigation into those factors”).
20. United States v. Larkins, 657 F. Supp. 76, 81 (W.D. Ky. 1987), aff’d, 852 F.2d 189 (6th Cir. 1988), cert. denied, 109 S. Ct. 1131 (1989).
21. Swanson v. United States, 789 F.2d 1368 (9th Cir. (1986); Leslie Salt Co. v. Froehlke, .578 F.2d 742 (9th Cir. 1978); United States v. Akers, 651 F. Supp. 320 (ED. Cal. 1987); Bailey v. United States, 647 F. Supp. 44 (D. Idaho 1986); Track 12, Inc. v. District Eng’r, United States Army Corps of Eng’rs, 618 F. Supp. 448 (D. Minn. 1985); United States v. Ciampitti, 583 F. Supp. 483 (D.N.J. 1984).
22. Ciampitti, 583 F. Supp. at 494.
23. Ahers, 651 F. Supp. at 323.
24. 33 C.F.R. § 328.3(a)(3) (1989); 40 C.F.R. § 230.3(s)(3) (1989).
25. 33 C.F.R. § 328.3(a)(3) (1989); 40 C.F.R. § 230.3(s)(3) (1989).
26. 765 F.2d 126 (10th Cir. 1985).
27. Id. at 130.
28. 662 F. Supp. 548 (S.D. Tex. 1987). But see Tabb Lakes, Ltd. v. United States, 715 F. Supp. 726 (E.D. Va. 1988), aff’d, 885 F.2d 866 (4th Cir. 1989) (jurisdiction based on possible use of wetlands by migratory birds not within Administrative Procedure Act, Pub. L. No. 89-554, 80 Stat. 383 (1966) (codified as amended at 5 U.S.C. §§ 500-576 (1988)) [hereinafter the APA]).
29. 662 F. Supp. at 549.
30. 740 F.2d 799 (10th Cir. 1984).
31. Id. at 803-04.
32. See United States v. Byrd, 609 F.2d 1204, 1210-11 (7th Cir. 1979).
33. 33 U.S.C. § 1344 (1982); 33 C.F.R. § 323.3(a) (1989).
34. See 33 C.F.R. § 323.2(d)-(f) (1989).
35. 33 C.F.R. § 325.2(b) (1989).
36. 33 U.S.C. § 1344(f) (1982). See also 33 C.F.R. § 323.4 (1989).
37. 33 U.S.C. § 1344(f)(1)(A-E) (1982). See also 33 C.F.R. § 323.4(a)(1-6) (1989).
38. 33 U.S.C. § 1344(f)(a)(F) (1982); 33 C.F.R. § 323.4(b) (1989).
39. 33 U.S.C. § 1344(f)(2) (1982); 33 C.F.R. § 323.4(c) (1989).
40. United States v. Larkins, 657 F. Supp. 76, 85 (N.D. Ky. 1987).
41. See, e.g., United States v. Akers, 785 F.2d 814, 819 (9th Cir.), cert. denied, 479 U.S.
828 (1986); United States v. Huebner, 752 F.2d 1235, 1241 (7th Cir.), cert. denied, 474 U.S. 817 (1985); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 925 n.44 (5th Cir.1983).
42. 33 C.F.R. § 323.4(a)(1)(ii) (1989).
43. See Larkins, 657 F. Supp. at 76; Conant v. United States, 786 F.2d 1008 (11th Cir. 1986); Akers, 785 F.2d at 814; Huebner, 752 F.2d at 1235.
44. 33 C.F.R. § 323.4(a)(1)(ii) (1989).
45. Auoyelles, 715 F.2d at 926. See also Conant, 786 F.2d at 1010.
46. 33 C.F.R. § 323.4(a)(1)(iii)©(2) (1989).
47. Id. § 323.4(a)(l)(iii)(D).
48. 33 U.S.C. § 1344(e)(1) (1982).
49. 33 C.F.R. § 330.5 (1989).
50. Orleans Audubon Soc’y v. Lee, 742 F.2d 901, 904 (5th Cir. 1984).
51. Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 511 (10th (Cir. 1985) (citing Riverside Irrigation Dist. v. Stipo, 658 F.2d 762, 768 (10th Cir. 1981)).
52. Orleans Audabon Soc’y, 742 F.2d at 904.
53. 33 C.F.R. § 330.5(a)(4) (1989).
54. ld. § 330.5(a)(12).
55. Id. § 330.5(a)(13).
56. Id. § 330.5(a)(14).
57. Id. § 330.5(a)(26).
58. Id. § 330.5(a)(26)(i)-(ii).
59. Id. § 330.2(b).
60. Id. § 330.5(a)(26).
61. See, e.g., United States v. Cumberland Farms, 826 F.2d 1151 (1st Cir. 1987), cert. denied, 484 U.S. 1061 (1988).
62. 33 C.F.R. § 330.5(a)(26) (1989).
63. Id. § 330.7(a)(1).
64. Id. § 330.7(a)(3).
65. The Corps recently issued a Regulatory Guidance Letter (No. 88-6, June 27, 1988) (“RGL”) further clarifying the nationwide permit program. The key provisions of this RGL are: (1) NWP #14—Authorizes minor road fills that are single and complete projects for crossing nontidal waterbodies. For this NWP to apply, the road must cross a surface waterbody with an OHWM; this being a lake, pond, river, stream or other open water area. (2) MWP #26—The term “loss or substantial adverse modification” for this NWP occurs when a discharge eliminates or greatly reduces the principal valuable function(s) of a water of the United States including wetlands. The entire evaluation process for determining whether NWP #26 applies must be completed within the twenty day period of the district’s receipt of the PDN. This means that the district engineer must ensure expedited coordination with resource agencies such as the FWS and EPA. (3) Multiple use of NWPs—It is entirely appropriate to combine two or more NWPs to authorize an activity. The acreage limitations of NWP #26 do not include the acreage that may be impacted by other nationwide permit authorizations which may be part of the same project. However, NWP #26 may not be used more than once on the same project. It may also be appropriate, in some cases, to allow independent parts of a larger project to proceed under the authority of a NWP while evaluating an individual permit application for other portions of the same project. Portions qualifying for a NWP, however, should be able to function without the portion requiring an individual permit. The Corps is currently considering revisions to the NW? that would eliminate the PDN for NWP #26. Because of the elimination of the PDN, it is said that the Corps will propose the permit only allow discharges filling two or fewer acres.
66. 33 C.F.R. § 330.7(a)(1) (1989).
67. Id. § 330.7(d).
69. Id. § 330.5(b).
70. Id. § 330.6.
71. Id. § 330.6(a).
72. Id. § 330.6(a)(5).
73. Id. § 330.5(b).
74. Id. § 330.6(a).
75. Id. § 330.5(b)(14).
76. Id. § 323.2(g).
77. Id. § 325.1(c).
78. Id. § 325.1(d).
79. Id. § 325.1(d)(4).
80. Id. § 325.1(e). See also id. § 325.1(d)(1).
81. Id. § 325.2(a)(2).
82. Id. § 320.2(f)
83. Id. § 325.3(a). See also Environmental Coalition of Broward County, Inc. v. Myers,831 F.2d 984, 986 (11th Cir. 1987).
84. National Wildlife Fed’n v. Marsh, 568 F. Supp. 985, 994 (D.D.C. 1983); see also Friends of the Earth v. Hall, 693 F. Supp. 904, 947 (W.D. Wash. 1988); 33 C.F.R. § 325.3(a)(1989).
85. 33 C.F.R. § 325.3(a), (d) (1989).
86. Id. § 325.2(d)(2).
87. See, e.g., Oklahoma Wildlife Fed’n v. United States Army Corps. of Eng’rs, 681 F. Supp. 1470 (ND. Okla. 1988).
88. 33 C.F.R. § 325.3(d)(3) (1989).
89. Id. § 327.4(a).
90. Id. § 327.4(b).
93. Id. § 327.3(a).
94. Buttrey v. United States, 690 F.2d 1170, 1176 (5th Cir. 1982), cert. denied, 461 U.S.927 (1983).
95. Buttrey, 690 F.2d at 1174-75; National Wildlife Fed’n v. Marsh, 568 F. Supp. 985,993 (D.D.C. 1983).
96. 33 C.F.R. § 327.8(d) (1989).
97. Buttrey, 690 F.2d at 1176. .
98. 33 C.F.R. § 320.4(a) (1989).
103. Id. § 320.4(b).
104. Id. § 320.4(b)(1).
105. Id. § 320.4(b)(2)(i)-(viii).
106. Id. § 320.4(b)(3).
108. Id. § 320.4(b)(4).
109. See, e.g., Mall Properties, Inc. v. Marsh, 672 F. Supp. 561 (D. Mass. 1987); 1902 Atlantic, Ltd. v. Hudson, 574 F. Supp. 1381 (E.D. Va. 1983).
110. See, e.g., Environmental Coalition of Broward County, Inc. v. Myers, 831 F.2d 984,986 (11th Cir. 1987).
111. See Quinonez v. Coco, 733 F.2d 1, 3 (1st Cir. 1984), and cases cited therein for examples of varying formulations of the judicial standard of review.
112. Buttrey v. United States, 690 F.2d 1170, 1180.82 (5th Cir. 1982).
113. Id, at 1182.
114. Id. at 1180.
117. 33 C.F.R. § 320.4(b)(4) (1989).
118. Quinonez v. Coco, 733 F.2d 1, 4 (1st Cir. 1984).
119. South La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1018 (5th Cir. 1980).
120. Id. See also Quinonez, 733 F.2d at 4.
121. Mall Properties, Inc. v. Marsh, 672 F. Supp. 561, 566 (D. Mass. 1987).
122. Id. See also Missouri Coalition for Env’t v. Corps of Eng’rs, 678 F. Supp. 790, 802 (E.D. Mo. 1988). aff’d, 866 F.2d 1025 (8th Cir. 1989).
123. Buttrey v. United States, 690 F.2d 1170, 1180 (5th Cir. 1982).
124. Mall Properties, 672 F. Supp. at 561.
125. Id. at 567.68. Corps regulations indicate that the Corps considers itself to have broader authority to review economic concerns than the courts have held. The Corps regulation on economics states in part, “The economic benefits of many projects are important to the local community and contribute to needed improvements in the local economic base, affecting such factors as employment, tax revenues, community cohesion, community services, and property values.” 33 C.F.R. § 320.4(q) (1989).
126. 33 C.F.R. § 320.4(a)(3) (1989). The South Carolina Coastal Council contends that it has jurisdiction under the Coastal Zone Management Act of 1972, Pub. L. No. 89-454, 86 Stat. 1280 (codified as amended at 16 U.S.C. §§1451-1464 (1982)) to veto projects in Georgia.
127. 33 C.F.R. § 320.4(c) (1989).
128. Sierra Club v. United States Army Corps. of Eng’rs, 772 F.2d 1043, 1054 (2d Cir.1985).
129. 33 C.F.R. § 320.4(f) (1989).
130. Id. § 320.4(j).
131. 33 U.S.C. § 1344(b) (1982). (After much political maneuvering, the Corps and the EPA signed a Memorandum of Agreement on February 6, 1990 to “. . . articulate the policy and procedures to be used in the determination of the type and level of mitigation necessary to demonstrate compliance with…” section 404(b)(1) guidelines. 55 Fed. Reg. 9,211 (1990)).
132. 33 C.F.R. § 320.4(b)(4) (1989).
133. Id. § 320.4(a).
134. 40 C.F.R. § 230.1(c) (1989).
135. Id. § 230.1(d).
136. Id. § 230.10(a).
137. Id. § 230.10(a)(i-ii).
138. Id. § 230.10(a)(2).
140. Id. § 230.42.
141. Id. § 230.10(a)(3).
142. Id. § 230.10(c).
145. Id. § 230.10(d).
146. See generally Id. §§230.70 to -.77.
147. Id. § 230.2(c).
148. Id. See also APA, Pub. L. No. 89-554, 80 Stat. 383 (1966) (codified as amended at 5 U.S.C. § 553 (1988)).
149. See, e.g., Buttrey v. United States, 690 F.2d 1170, 1173 (5th Cir. 1982). A challenge to a Corps’ permit decision often includes consideration of the requirements of the National Environmental Policy Act, Pub. L. No. 91-190, 83 Stat. 853 (1970) (codified as amended at 42 U.S.C. §§ 4321-4361 (1982)), and required environmental impact statements as well. See, e.g., Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986). A discussion of these issues, however, is beyond the scope of this Article.
150. Friends of the Earth, 800 F.2d at 830; Shoreline Assoc. v. Marsh, 555 F. Supp. 169 (D.Md. 1983), aff’d, 725 F.2d 677 (4th Cir. 1984), Hough v. Marsh, 557 F. Supp. 74, 81 (D. mass. 1982).
151. Louisiana Wildlife Fed’n v. York, 761 F. 2d 1944, 1048 (5th Cir. 1985).
152. Friends of the Earth, 800 F.2d at 833.
153 772 F. 2d 1043 (2d Cir. 1985).
154. Id. at 1051.
156. 40 C.F.R. § 231.1(a) (1989).
157. 850 F.2d 36 (2d Cir. 1988), cert. denied, 109 S. Ct. 1556 (1989).
158. See Newport Galleria Group v. Deland, 618 F. Supp. 1179, 1180 (D.D.C. 1985).
159. Id. at 1183.
160. Id.; Bersani, 674 F. Supp. at 415.
161. Newport Galleria Group, 618 F. Supp. at 1184.
162. Bersani, 674 F. Supp. at 415.
166. 33 U.S.C. § 1319(c), (d), (g) (Supp. V 1987).
167. Id. §§ 1319(a)(3) & 1344(s)(1). See also 33 C.F.R. 326.3(c) (1989).
168. 33 C.F.R. § 326.3(d) (1989).
169. 33 U.S.C. § 1319(g)(2)(B) (Supp. V 1987).
170. 33 C.F.R. § 326.3(e) (1989).
171. 33 U.S.C. § 1319 (Supp. V 1987).
172. Id. §§ 1319(d) & 1344(s)(4).
174. See Tull v. U.S., 481 U.S. 412 (1987).
175. Id. at 427.
176. 33 U.S.C. § 406 (1982).
177. United States v. Joseph G. Moretti, Inc., 526 F.2d 1306, 1310 (5th Cir. 1976).
178. Weiszmann v. District Eng’r, 526 F.2d 1302, 1304 (5th Cir. 1976).
179. United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1301 (5th Cir. 1976).
180. United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1507 (11th Cir. 1985), Located on other grounds, 481 U.S. 1034 (1987).
181. See, e.g., United States v. Ciampitti, 583 F. Supp. 483, 487 (D.N.J. 1984).
182. See, e.g., United States v. Holland, 29 Env’t Rep. Cas. (BNA) 2041 (11th Cir. June 7, 1989).
183. 33 U.S.C. § 1319(c)(4) (Supp. V 1987).
184. Id. § 1319(c)(1).
185. Id. § 1319(c)(2).
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